Public Bill Committee

[Frank Cook in the Chair]

Further written evidence to be reported to the House

MH 65 Commission for Racial Equality
MH 66 ASW Leads Network
MH 67 Alan Capps
MH 68 Submission from Opposition MPs - a transcript of an informal oral evidence session held in Committee Room 16 of the House of Commons on Monday April 23rd organised by Opposition MPs

Frank Cook: Before we continue our consideration of matters relating to clause 30, I ought to comment on the submissions that are coming into the Committee as we proceed. I am approving the submissions that come to me as quickly as I can, which I must tell you is pretty quick. I was relieved to see last afternoon that the submission—the transcript—from the Opposition’s little select committee evidence taking sessions has been sent around to everyone. You all now have that available should you need it—we have, after all, discussed it at great length.
Some submissions are coming in indirectly, with a kind of body swerve, as it were, straight to you rather than to anyone else. I cannot do much about that, but I ask you to deal with those submissions with care and responsibility, as I know you will.
Now, being the diligent and hon. Members that you are, let us proceed with our consideration of clause 30 by turning to—[Interruption.] Someone has nicked my script. [Laughter.] This is preposterous: a member of the Government is seeking to gerrymander the proceedings!

Clause 30

Electro-convulsive therapy, etc.

Amendments made: No. 69, in clause 30, page 19, line 4, after ‘treatment’, insert
‘(neither of whom shall be the responsible clinician or the approved clinician in charge of the treatment in question)’.
No. 70, in clause 30, page 19, line 5, leave out ‘nor the responsible clinician’.—[Ms Winterton.]

Tim Loughton: I beg to move amendment No. 9, in clause 30, page 19, line 29, at end add—
‘58B Treatment for patients under 18 requiring consent and a second opinion
(1) Subject to section 62 below, a patient under eighteen years shall not be given electroconvulsive therapy (whether or not he is liable to detention), unless a registered medical practitioner appointed as aforesaid (not being the responsible clinician) has certified in writing that—
(a) the patient is capable of understanding the nature, purpose and likely effects of that treatment, and has consented, and that having regard in particular to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given; or
(b) the patient is incapable of understanding the nature, purpose and likely effects of that treatment, and either—
(i) a person who has parental authority for the patient understands the nature, purpose and likely effects of that treatment and has consented to the treatment and that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given; or
(ii) the High Court has determined that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given;
(2) For the purposes of treatment given under this section either the registered medical practitioner responsible for the patient’s treatment or the registered medical practitioner providing the second opinion shall be a clinician with specialist training in child and adolescent mental health, defined in accordance with regulations prescribed by the Secretary of State.’.
Welcome back to the Chair, Mr. Cook. May I echo your comments about the evidence that you are receiving, which you are turning around remarkably quickly? I am sure that all members of the Committee are grateful for that. The transcript of the informal committee was turned out particularly quickly—I will call it that rather than “select committee”, as you referred to it, Mr. Cook, to save further debate on the subject. I also made sure that hon. Members were given it directly, so they have probably received two copies. I hope that it will prove to be useful for the remainder of our deliberations.
 Electroconvulsive therapy—the subject of clause 30—has always been a contentious issue. The treatment is particularly controversial, and gives rise to a number of concerns when applied to children. Amendment No. 9 would inject some assurances about how ECT may in extremis be used for the benefit of children. The amendment is in my name, those of my hon. Friends and those of the Liberal Democrats. It endeavours to provide that ECT may only be given to under-18s with consent and a second opinion. The consent would be from the young person when they are capable of giving it, or that of a parent when they are incapable. The amendment would allow consent to be given by order of the court in the case of parents who do not feel comfortable with the responsibility of giving consent, or who might not make decisions in their child’s best interest. That would ensure that both young people’s and parents’ needs are protected.
It is difficult for parents who are asked about applying ECT to a vulnerable child who is going through a traumatic time to make a decision. We want to make the application procedure for ECT easier.
As it is, children and young people can have ECT on parental consent alone or, with a second opinion authorisation, it can be administered against their wishes and the wishes of the parents. ECT is an invasive treatment and the pre-legislative scrutiny Committee has expressed concerns about it, too. It can have a number of side effects, including short or long-term memory impairment.
The National Institute for Health and Clinical Excellence guidelines stipulate that
“ECT is usually reserved for cases where there is a perceived life-threatening situation or where extensive alternative treatments have failed. Without controlled trials, the evidence for its efficacy is limited.”
Everyone would agree that the adolescent brain is developing. Its structure is changing. We could have great debates about how the brain develops in the early years and how attachment can affect it. The brain of a teenager is certainly not fully developed, as I am sure parents of teenagers will concur.
I am not a clinician, but—technically—synaptic pruning, which is believed to be essential for the fine tuning of the functional networks of the brain, takes place throughout adolescence, as do changes to the frontal cortex. That is essential to functions such as response inhibition, emotion regulation, analysing problems and planning.

Chris Bryant: Does the hon. Gentleman want to explain that further?

Tim Loughton: I got that paragraph from my good right hon. Friend the Member for West Dorset (Mr. Letwin), in one of his lighter moments.
We need to make sure that, when used, ECT is used for the best therapeutic benefit of the young person in extremis when there are no alternatives and when, ultimately, their condition could be life threatening. It is important that such an invasive treatment, with its potential psychological as well as cognitive adverse effects, is not imposed against the will of a young person with decision-making capacity.
 The amendment would provide for a second opinion under the second opinion approved doctor system for both formal and informal patients. That would go some way towards achieving the safeguard. The amendment would also require that either the young person’s doctor or the SOAD is a child and adolescent practitioner. Again, carrying on last Tuesday’s debate about the importance of age-appropriate treatment carried out by age-appropriate qualified practitioners, that is more essential in the case of extreme forms of treatment.
The joint scrutiny Committee recognised the importance of using specialist clinical knowledge when working with children and young people. Members of that Committee agreed with the ECT safeguards provided for under-16s in the draft Mental Health Bill, but considered that they should be extended to 16 and 17-year-olds. We are recognising that in extremis ECT may ultimately be a suitable treatment for a child. I am talking about a small number of cases. It is absolutely essential that proper safeguards are attached to the treatment for the benefit of the child and the parent who may have decision-making powers for that child.

Tim Boswell: Before the hare starts running in Committee again, does my hon. Friend agree that, in most cases, the choice to consider ECT would not arise in an emergency, so the need to obtain a second consent would not be inhibitory to a proper consideration? It would not prevent essential treatment from being given.

Tim Loughton: That is indeed right. A future amendment will deal with emergency situations. We are not looking to take away the powers of a clinician to administer such treatment in an emergency. If a decision had to be made in life-threatening circumstances, we would not want to overrule a clinician’s opinion. I hope that the Committee will regard the amendment as helpful. It would give further assurances that children received appropriate treatment—a form of treatment that is probably the most invasive that we have discussed so far in Committee.

Ian Gibson: I just want to say something about ECT. Unless people see it, they do not understand what a dreadful episode that procedure can be in somebody’s life. Basically, a person goes into a fit. We do not know what ECT does in the brain. The best explanation that I have seen is that it resets the computer, whatever that means. We hear of side effects, and we also hear of deaths. There have only been seven deaths in the past year, but it is a dreadful treatment. We have to be very careful when we allow that treatment to be used.
 I will put my cards on the table and say that I am absolutely against ECT even in desperate situations. There is always an alternative. I want to amplify the need for real safeguards for whoever gets that treatment, particularly children, because their protection should be no different from that of an adult. The treatment is drastic and we need to ensure that there are safeguards. At different periods, the Government have looked into the matter to see that safeguards are in place. I look forward to hearing what the Minister says. I know that I speak for my hon. Friend the Member for Bristol, North-West, who is not here. In his campaigning on mental health, he, too, has worried about the issue. We should be wary about the safeguards. They must be high enough to ensure that we do not get any cowboy effects from the treatment of our patients, particularly our young ones.

John Pugh: I may possibly be the only member of the Committee who has assisted in the administration of electroconvulsive therapy. I was working as a nursing assistant without any nursing or medical qualifications during a gap year from university, which proves that the mental services have progressed significantly since then.
 I can remember exactly what happened very vividly. People were wheeled in, jewellery and false teeth were removed, they were sedated, and there was a brief application. Patients had a fit and it was expected that amnesia would be an automatic consequence of the treatment. Incontinence was one of the other automatic responses that sometimes occurred. The regime under which I was working assumed that the treatment could be used almost casually. It was used to treat cases of endogenous depression—when people are very deeply depressed. It was not used in life and death situations, but in circumstances in which the psychiatrist thought it was an appropriate treatment.
Even in those days, some psychiatrists refused to use ECT. Even those who used it recognised that there was a limit to how far they could use it. After a while, the treatment itself became addictive and the patient simply became more and more depressed unless they had the repeated treatment. The interesting thing about ECT, as the hon. Member for Norwich, North has said, is that there is no explanatory paradigm as to how it works; people just know that it works, in the same way that people, in years gone by, used to go around travelling fairs and use electricity to cure all sorts of ailments. Occasionally, it worked on conditions such as rheumatism. In the absence of an explanatory paradigm, I found it very interesting to read in the clause, the phrase
“that the patient is capable of understanding the nature, purpose and likely effects of the treatment”.
I do not think that we understand the full nature of the treatment. I can be corrected by experts who may tell me that they now understand precisely how it works.
 The treatment has been used in mental health services for a long time with people knowing that it has an effect, but not knowing very much about what other effects it might have. That is a real reason to have extra precautions put in place, particularly in the case of children because the child and adolescent brain is still evolving and developing in a way that the adult brain is not. There are very strong reasons for putting in place every adequate precaution because, even in the adult scenario, it may not be a completely satisfactory treatment, especially if we do not know what is going on.

Angela Browning: I want to add my support to what has been said. In replying to the scrutiny Committee, the Government responded very positively to recommendation 44 and pledged to amend the Bill as far as young people are concerned. I have experience with a relative who—I suspect as a result of his service in the far east in the second world war—regularly received ECT treatment, which appeared to have results for a short time, but they were not long lasting. I can share people’s concern about how it affects adults, but here, in looking at how it affects young people, it is interesting to note the 2003 NICE guidance on ECT:
“The risks associated with ECT may be enhanced...in children and young people, and therefore clinicians should exercise particular caution when considering ECT treatment in”
that group.
The numbers show that clinicians are cautious in recommending the treatment, particularly for young people. The point was made about the need for additional protection for younger people in such a determination, but if they are under 18 also for their parents. The parents might be asked to make that decision, which would be difficult. So, however the legislation is amended, it must take account of patients who are under 18 and of those who have parental responsibility for them. Adding such precautionary principles into the Bill would be a good thing.

Hywel Williams: I, too, was involved in administering ECT, a number of years ago when I was trained as an approved social worker. I have first-hand experience of the distress caused, albeit to adults. If it caused that sort of distress to adults, there is even more reason to be cautious with children.
I would like to point out that ECT is not a one-off experience, but is given in courses of up to six treatments. From my direct experience, there was, then at least, a fear of future treatment among the patients that I dealt with. The reassurance of the involvement of parents would certainly be very useful—essential, I think—with young people.

Rosie Winterton: I welcome you back to the Chair, Mr. Cook, and add my thanks for the speed with which you are turning around our various submissions.
 The treatment of patients with ECT was debated at length in the other place. As a result, the Government tabled amendments to the Bill—clauses 30 and 31 —providing that, where a detained patient has capacity to give consent, it must be given before ECT can go ahead. It is important to be clear about the issue of children from the outset. If a child has capacity to consent and refuses treatment, then that treatment cannot go ahead. That is the first point that we need to be clear about and it is provided for by new section 58A, which we propose to add to the Mental Health Act. It will also be possible by regulation to subject additional treatment to the safeguards in new section 58A, which applies to detained patients of all ages.

Tim Boswell: Just for clarification, when the Minister referred to a child and the child having capacity to consent, was she talking about children between the ages of 16 and 18 or about all children, irrespective of their age?

Rosie Winterton: As long as they have the capacity to consent, then it applies to all children.
Amendment No. 9 proposes changes in relation to ECT for patients under the age of 18. I assume that new section 58B is intended to apply instead of new section 58A. I believe that the drafting means that the provisions in new sections 58A and B would apply to detained patients under 18.
Amendment No. 9 would also apply to patients under 18 who are not liable under the Mental Health Act 1983 to detention in hospital, to whom I will refer as informal patients. As many hon. Members have said, particularly my hon. Friend the Member for Norwich, North, ECT is a very invasive treatment, but as other hon. Members have conceded, its use in treating child patients is rare, and there is no reason to think that that will change.
In the past three years, the Mental Health Act Commission has heard only nine requests to give ECT to patients under 18. Two patients were refusing the treatment, while seven were not capable of giving consent. Of those seven, only five were certified by the SOAD for treatment. In addition to the nine, one request was made for a SOAD to consider allowing an under-18 to be given ECT and medication.
None the less, despite the rarity of ECT, my noble Friend Baroness Royall said during the Bill’s passage through the other place that the Government would consider additional safeguards for children regarding treatments that come within the scope of section 58A. We are still considering what issues were raised in the other place and examining some of the complexities, and are not quite ready to set out our conclusions.

Ian Gibson: Our friendly National Institute for Health and Clinical Excellence has done appraisals on ECT technology, and was supposed to do it again after November 2005. One of its points was this:
“To help in the discussion”—
that is, the discussion with the doctor whether ECT should be applied—
“full and appropriate information about ECT should be given, including information about its potential risks and benefits, both general and specific, to the individual.”
NICE recommends that information leaflets should be available, too. That is an important part of the process. It should not just be a doctor saying, “This is what’s good for you”; the individual has the right to make an assessment with information. Is that information available, according to NICE’s recommendations?

Rosie Winterton: I shall have to come back to my hon. Friend on that issue. I am not sure whether the information is available, but I might be enlightened before I sit down.

Angela Browning: In light of the scrutiny Committee’s report and recommendations, to which the Government seemed to be amenable, why was that not drafted into the Bill before it went before the other place?

Rosie Winterton: I am not sure whether the hon. Lady is referring to the idea that consent must be given for ECT. If she is, I say to her that we listened to the debate in the other place and introduced amendments. I hope that that is helpful—we have listened to some of the points made.
 The amendment before us would apply to both detained and informal patients under 18. It raises the difficult issue of parental responsibility. The hon. Member for East Worthing and Shoreham is quite right to say that for such parents, what is happening to their child is obviously extremely distressing and difficult. We do not believe that it is right for a parent to authorise treatment where a patient is detained, because that is not how the Act works for any treatment of detained patients.
 As for informal patients aged 16 or 17 who lack capacity, the Mental Capacity Act 2005 would, obviously, apply. A parent’s ability to make decisions about their child, including their right to authorise treatment, is subject to something called the concept of the parental zone of responsibility. That means that the parent’s ability to make the decision depends on the facts of each case, having regard to such factors as the age of the child, whether the child is refusing, and the nature of the decision.
Of course, in most cases it is appropriate for a parent to make decisions about treatment for a child, when the child is an informal patient and is not competent to make a decision. However, the courts may view some forms of medical treatment as so invasive that deciding whether to give them to a child would not be a normal parenting decision. I am thinking of cases in which a doctor, perhaps a second opinion doctor, might have reservations about the treatment to which a parent had consented on the child’s behalf. We should not seek to anticipate such cases through legislation, because they may have to go before the family courts for a decision about what would be in the child’s best interest.

James Duddridge: I apologise if I am broadening the issue by making this intervention, rather than probing on the Minister’s specific point, but I have a problem with putting the matter into context. How many people under 18 have ECT at the moment, and at what age can it be given? I presume that it cannot be given to a baby, but can it be given at 11—or at 16? Is there any breakdown of numbers? I know that that is quite a specific question; I should like the Minister to give an overview now, but perhaps she could provide more detail for the Committee later.

Rosie Winterton: Perhaps I may explain how things work now under the Mental Health Act 1983. If a child who is detained consents to the treatment, it must be approved by a clinician in charge of the treatment, or by a second opinion doctor. If a child who is detained refuses the treatment, and is capable of making the decision, the ECT cannot be given except in an emergency. If the detained patient is not capable of consent, that must be certified by a second opinion doctor appointed by the Mental Health Act Commission.
Nine cases were referred to the commission in the past three years, as I said earlier. Of those, two involved refusal of the treatment, while seven involved patients who were not capable of giving consent. Of those seven, only five were certified by the SOAD so that treatment could go ahead. There are already safeguards, because the question whether the treatment is appropriate for the child is carefully examined. We have, as I have said, amended the Act, with reference to the provision that if a child capable of making the decision refuses, the treatment will not go ahead.

Tim Boswell: I think I had understood that message earlier and what the Minister says appears to be mutually consistent with it, which is always a good thing. However, I do not think she mentioned the figures in response to my hon. Friend the Member for Rochford and Southend, East—which I too was feeling after—in respect of cases in which a child under 18 has given consent. Will she say how many children are being treated at the moment, so that we have some idea? I understand that the hard cases are the important ones, but an overall figure, which the Minister may yet be able to share with the Committee, would be useful to set the context.

Rosie Winterton: I do not have those figures, but I shall try to obtain them, if that would be helpful. We have amended the Bill so that anyone who is not consenting and is not capable cannot have ECT.
 There are some issues to consider, including in some instances the fact that, if the child is detained under the 1983 Act, a doctor and a second opinion doctor need to make the decision. There is independence in that provision. In a sense, for the parental responsibility to override  that in the case of detained patients is against everything else that happens under that Act. I realise that this is difficult and, on first reading, one would imagine that the parental responsibility could override the provision, but it is important to recognise that, sometimes, it will be necessary to administer treatments, with all the safeguards that there are, to ensure that a child gets the treatment that is needed.
The amendment refers to cases going to the High Court. We do not believe that it is right to require the court to approve treatment with ECT in every case in which a parent cannot or will not consent. The court should be able to intervene in a limited number of cases, rather than routinely. If a parent objected to ECT for their child, they could apply to the court under the Children Act 1989 for an injunction stopping treatment, pending a full consideration of the case, when the court might order that the treatment not be given. In such cases, the child would be represented by the Official Solicitor.
With regard to 16 and 17-year-olds, a deputy would be appointed by the Court of Protection. If a capable patient is required to consent to ECT—for example, a 16 and 17-year-old patient who lacks the capacity to do so with a deputy who has been authorised by the court to take decisions about treatment—their deputy should be able to refuse consent as if they were the patient. That is how section 58 works.
Hon. Members may say, “If a deputy can do it, why can’t a parent?” The difference is that the court has appointed somebody who stands in its shoes to make decisions about treatment, hence the difference between that and the parental issue.

Tim Boswell: The Minister has given the Committee some valuable assurances and reassurances about how parents can express their views and have them taken into account by the court, perhaps by an injunction procedure. As I recall, it would also be possible, if the parent was unhappy about the deputy’s view that such treatment should proceed, for them to make an application to the Court of Protection for that to be overturned.

Rosie Winterton: Yes, I believe that that is the case. However, there are some elements of the amendment that we do not want to include; in particular, the idea that a SOAD should always be involved in certificating ECT for child patients except in emergencies. As I have said before, there is also the question of whether to include further safeguards with formal child patients.

John Pugh: The Minister has explained the legal safeguards well and has provided some powerful reassurances in some areas. Aside from legal safeguards, there is the question of whether ECT is ever clinically necessary. The Minister said that the number of cases in which ECT is used is limited. Presumably it is possible to give the Committee some written indication—not necessarily here and now—of the clinical reasons that have been given for the use of ECT on children and whether the same clinical reasons are used in other countries. It might be that the practice simply does not occur in other countries.

Rosie Winterton: I am certainly prepared to consider whether we can gather information on that. I suspect that it is an area in which there are differences of clinical opinion, so I think that we would need to be cautious about in any way indicating that we wanted to override decisions. In the debate in the other place, some psychiatrists said that, although they had always had some reservations about ECT, it could be effective in some instances. I shall see whether I can obtain advice. However, I hope that the Committee will accept the assurances that I have given and that the amendment will be withdrawn.

Tim Loughton: The debate has been a good one and the Minister has given some useful explanations. We have been reassured that there is a route whereby a parent can obtain an overriding injunction, which is an important safeguard, as are the court-appointed officials that have been mentioned. I am also pleased that the Minister has promised to remove some elements of the amendment, particularly those regarding SOAD responsibility for certification, which would strengthen what we are all trying to achieve. The amendment was a probing one and I trust that the Minister will look favourably on it as a way of improving the legislation on Report. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30, as amended, ordered to stand part of the Bill.

Clause 31

Section 30: supplemental

Tim Loughton: I beg to move amendment No. 10, page 20, line 1, at end insert—
‘(c) after subsection (3) insert—
“(4) Subsection (1)(b), (c) and (d) above shall not apply if the treatment is electro-convulsive therapy.’.
 The amendment is another probing one in relation to ECT. Its purpose is to amend the 1983 Act to restrict the right to give emergency ECT without the normal safeguards to patients lacking capacity, and instead to limit treatment to situations in which it is given to save the patient’s life. We agreed earlier that, although we might not like the use of ECT—some hon. Members have questioned whether it ever has any efficacy, and I share that concern—in emergency life or death cases, we must rely on the opinions of clinicians at the coal face.
Section 62 of the 1983 Act covers urgent treatment. It severely limits the emergency provision of treatments that are hazardous or irreversible. It is generally accepted, and I think that there is general agreement in the Committee, that ECT is hazardous, although the risk to individuals will vary depending on general health and other factors. Indeed, as the hon. Member for Norwich, North has said, there is a question mark over the issue of its effect, and its possible side effects. It is therefore possible, under section 62, that it should not be available except under section 62(1)(a), as immediately necessary to save the patient’s life.
It is not clear, however, that section 62 can be interpreted in that way. The form of wording implies a relevant treatment not being irreversible or hazardous of itself, although it might be either irreversible or hazardous in an individual case. I know that the Mental Health Alliance believes that a treatment that is potentially hazardous and irreversible should not be given without a second opinion, except in the most compelling circumstances, such as when it is immediately necessary to save life. I agree with that view. It is, also, extremely unlikely that ECT would ever be the only alternative for a patient. We have heard in an earlier debate the Minister’s reassurance about how little ECT is used for children. There have been a couple of handfuls of cases in the past few years, so the practice is not widespread, but it is important that safeguards should exist for the relevant people; they should be protected.
In the debate on this subject in the House of Lords, Baroness Murphy said:
“The only circumstance where one is justified in giving emergency ECT—in other words, to give it without a second opinion in a life-threatening illness—is where someone has stopped eating and drinking. Under those circumstances they have nearly always stopped speaking as well.—[Official Report, House of Lords, 15 January 2007; Vol. 688, col. 483-4.]
The amendment is a probing one, to attempt to instil some safeguards into the arrangements. There appears to be some doubt in the wording of the 1983 Act about the potentially hazardous nature of ECT. We want more safeguards on ECT, alongside those for other potentially hazardous treatments covered by the Bill.

Ian Gibson: I think that we all welcome the changes that have been made in the Lords, on the administration of ECT to patients with capacity who refuse it. I am still concerned, however, about the possibility of urgent treatment provisions being used to give ECT to a refusing patient, in situations that are clearly not an emergency. For example, violent behaviour, it seems, could in certain instances justify the use of ECT. The Minister and I are both familiar with the case of Rocky Bennett, who showed violent behaviour, was restrained in a certain way, and sadly died. I know that there is no parallel, but it might be possible, in such circumstances, to arrive at an interpretation in which ECT is thought better for someone than having six people sitting on him. I do not know, but the Minister should say something about that type of case. It can never be right to give someone ECT just to control behaviour, and I should not want justification of that to be an aspect of the passage of the Bill.
I can see that there might be some situations, involving for example patients who are catatonic, in which ECT would be used, but in my opinion emergency ECT should never be given simply to control violent behaviour. I hope that nothing in the Bill will be taken as justifying or permitting that.

Tim Boswell: I very much agree with the remarks of the hon. Member for Norwich, North. The Committee should bear something else in mind: we are confident in general of the good faith of clinicians, but in circumstances in which the patient is, perhaps I should say, behaving badly, which we as lay people would find difficult to handle, and which may be difficult for some clinicians as well, we may have an underlying fear that something might be presented as an emergency when it was in fact a continuing clinical situation, requiring a more deliberate clinical decision, and that some reversions to ECT for a patient who was being violent might use the alleged emergency as a pretext for ECT. I think that the Committee’s overall message across all parties this morning is the less ECT the better—certainly not unless it is absolutely necessary or without due consideration and, if at all possible, consent. I concur with the sentiments already expressed.

John Pugh: I am not sure how I am going to get this clarification; maybe the Minister can help me. We were talking about the possibility of ECT being used to control somebody in an emergency situation who is being violent. My supposition is that the administration of ECT normally involves sedation. If somebody is already sedated, they will not be violent at all, unless it is suggested that ECT be used on people who are not sedated, which I think most would regard as cruelty. The case that we need to worry about is one in which somebody is chronically violent and ECT is seen as a remedy for it, which is different.

Ian Gibson: Is it not part of ECT for an anaesthetist to be present in the room as well? The drug is administered and the patient is quieted in that way; then the pads are put on the brain.

John Pugh: My point is that using it to deal with a particularly violent episode would not be the right strategy, because sedating someone resolves a violent episode.

Rosie Winterton: Again, the issue was certainly debated in the other place. My hon. Friend the Member for Norwich, North raised the tragic case of Rocky Bennett. I should like to confirm that it does not appear to me that using ECT to control a violent situation is the right thing to do, as a general anaesthetic is administered before it occurs.
My hon. Friend also made a point about NICE guidance and whether it must be taken into account as part of the process when patients consider ECT. The patient is required to understand treatment, which means of course that best practice is to use information that explains the treatment fully. In such circumstances, I would consider NICE guidance to be included in that. 
Amendment No. 10, a probing amendment, quite rightly examines the situation regarding what is considered emergency treatment, and attempts to say that ECT should be used simply for emergency treatment—in other words, only in cases where treatment is immediately necessary to save the patient’s life. During the debate in the other place, Lord Hunt and Baroness Royall agreed that the Government would consider the point, but they felt that to limit the circumstances in which treatment can be given in urgent situations to those in which it is immediately necessary to save life would be too restrictive. I agree, and I will try to explain the sort of conditions where flexibility is needed, although I understand completely the concerns that prompted the amendment.
We do not want our commitment to requiring consent if a patient has the capacity to give it to be overridden by clinicians wanting to use the urgent treatment provisions as a mechanism for providing ECT to patients who object to it. There are strong arguments that it is inappropriate that all the criteria in section 62(1) should apply when considering whether to give ECT to a patient as an urgent treatment. The criteria include treatments that are given to alleviate serious suffering or to prevent a patient from behaving violently or being a danger to himself or others. However, I am concerned that amendment No. 10 would prevent treatment for a patient who does not yet need to have their life saved, but whose condition risks them suffering irreversible effects if treatment is not urgently provided. ECT can be effective in treating some patients with depression. Sometimes, such patients refuse to take any sustenance—to eat or to drink. If that continues for long enough, they will die.
The problem with the amendment is that it would allow for a patient who continues to refuse ECT to receive it only when they get to a point at which their condition is immediately life threatening. It is true that during that time, clinicians may consider other treatments.—[Interruption.]

Frank Cook: My apologies to the Committee.

Rosie Winterton: However, it can take weeks for a patient to respond to anti-depressant medications. There may be situations in which that will be too late.
Before such patients would be considered to be in immediate need of treatment to save their life, there will be a time when their continued refusal to take food or water, while not life threatening, puts them at immediate risk of a serious deterioration in their condition. Their internal organs, such as their kidneys, might be irreversibly damaged, which could result in life-long disability or illness. In such a situation, it would be wrong to deny a patient urgent ECT treatment when they have either refused it or are not capable of giving their consent. Also, it would be wrong to ask a clinician with responsibility for a patient who lacks capacity to wait either until their condition deteriorates to the point at which they are on the verge of death, or until the SOAD arrives to certify the treatment. There are therefore instances in which we would not want to see clinicians constrained by the effects of the amendment.
Having said that, I understand the thinking behind the amendment, but we have to be realistic; there may be situations in which ECT will need to be administered.

Angela Browning: Will the Minister clarify how much ECT would be used in the circumstances she described? Will a clinician recommend ECT to deal with the psychological factors when a patient has unilaterally stopped taking fluid or other sustenance to the extent that it has had a physical effect? I am not knowledgeable enough to know whether that would be the course of treatment in those circumstances—I do not know, and I do not know whether she knows. Withdrawal of fluid from the body over a sustained period can have a dramatic effect. Would ECT be so much as considered in such circumstances?

Rosie Winterton: Yes, the example I gave was of someone with serious depression who, as may well happen, has stopped eating and drinking. Anti-depressants can be used, but they take time to take effect. ECT will be used at some stage, but the amendment, which is in the hon. Lady’s name, would mean that the clinician had to wait until the patient was near death, as opposed to putting their internal organs at risk of damage.

Tim Boswell: Does the Minister agree that it would be wise in such circumstances, both in terms of clinical governance and any possible legal challenge, for the clinicians to make a careful note of the circumstances that led up to the situation and informed his or her clinical decision?

Rosie Winterton: Of course that is what we would expect. Given that reassurance, I hope that the hon. Member for East Worthing and Shoreham will consider withdrawing the amendment.

Tim Loughton: Again, we have had a useful debate, but we are talking about some technical clinical situations that the Minister and myself are probably not capable of analysing in great detail. I did say that this was a probing amendment and that we might want to return to this matter. She signalled that there were points in the amendment that might merit further attention should we return to ECT on Report. We may consider this further, because I think that we are both trying to achieve the same assurances and safeguards for the patient without an early reliance on a highly invasive and potentially damaging treatment.
I look forward to the further work that the Minister said that she was undertaking, and we shall perhaps have a further debate on this on Report. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to discuss the following new clauses:
New clause 4—Advance decisions and advance statements
‘(1) The 1983 Act is amended as follows.
(2) After section 76 (visiting and examination of patients) insert—
“76A Advance decisions and advance statements
(1) In this Act—
(a) reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005(c.9)) made by the patient, and
(b) “valid and applicable” in relation to such a decision means valid and applicable to the treatment in question in accordance with section 25 of that Act.
(2) If an advance decision is found to be valid and applicable to the treatment regulated by Part 4 of the 1983 Act, the person providing the treatment shall have regard to the advance decision.
(3) Where a decision is made which is inconsistent with a valid and applicable advance decision by the person providing treatment, that person must comply with the requirements set out in subsection (4) below.
(4) Those requirements are—
(a) the circumstances in which treatment was provided and the reason for it should be recorded in writing; and
(b) a copy of that record should be supplied to
(i) the patient
(ii) the patient’s nearest relative and another copy placed in the patients medical notes.
(5) A person performing a function under this Act shall consider, so far as reasonably ascertainable the patient’s past and present wishes and feelings (and in particular any relevant written statement made by him when he had capacity.”.
(3) In section 63 (treatment not requiring consent), at the end, insert—
“(2) When deciding what treatment to give, the approved clinician in charge of the treatment shall consider so far as reasonably ascertainable the patient’s past and present wishes and feelings (and in particular any relevant written statement made by him when he had capacity), and shall record any treatments requested by the patient in the patient’s medical record, and if that treatment is not given shall record the reasons for this.”.’.
New clause 16—Treatment requiring consent (administration of medicine)
‘(1) Section 58 of the 1983 Act is amended as follows.
(2) In subsection (1)(b) leave out “three months” and insert “two months”.’.
New clause 25—Advance statements
‘(1) The 1983 Act is amended as follows.
(2) After section 142 insert—
“142A Advance statements
(1) In this section ‘advance statement’ means a written statement made by a patient (‘P’)—
(a) when P has reached the age of 18 and has the capacity to make such a statement, and
(b) deposited with the person (‘N’) who is primarily responsible for P’s care.
(2) An advance statement may contain—
(a) information about P, and
(b) directions as to the persons to whom that information (or specified pieces of information) is to be communicated if P becomes mentally disordered.
(3) N must—
(a) have regard to the advance statement;
(b) ensure that any other person who is concerned with the care of P is aware of the advance statement.
(4) P may—
(a) withdraw an advance statement, or
(b) replace it with an amended advance statement,
at any time when P has the capacity to do so.”.’.
May I advise hon. Members that it is important that when they stand to speak, they stay standing, so that I know that they are going to speak, and that they stand plainly?

Sandra Gidley: My apologies, Mr. Cook, for not standing plainly. I was trying not to stand while you, too, were speaking. I had one eye on the clock and realised that I had only a minute or two to make comments, and another eye on the Whip—[Interruption.]

Claire Ward: I am not your Whip.

Frank Cook: Order.

Sandra Gidley: Most of my comments relate to new clause 4, which is an attempt to put the Bill, which we are trying to improve, on a par with the Mental Capacity Act 2005. That Act allows a person to make an advance directive on refusing further treatment. Such a directive is most commonly used when people are aware that they have Alzheimer’s or another degenerative disease. In such circumstances, people often reach a decision when they are well that they will reach a stage when they may not want further treatment, so the directives are commonly associated with a refusal of treatment.
It is important in the context of mental health legislation to realise that there is another aspect to this. Patients can make a positive recommendation when they are well of how they would prefer to be treated. They may have received a number of different treatments in the past and have strong ideas as to which is the most effective and useful for them. Being allowed to make such decisions empowers patients.

It being twenty-five minutes past Ten o’clock, The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past One o’clock.